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Vol. 4 No. 122 – JUNE 26, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-9358 Hilda A. Harris v. Katherine A. Suplee, et al., App. Div. (7 pp.) Since plaintiff s case has progressed as a legal malpractice case, although the complaint did not technically allege this cause of action, and since defendant cannot claim surprise nor prejudice, the trial judge erred in denying plaintiff s motion to amend her complaint to add a legal malpractice count. AUTOMOBILES 05-2-9359 State, Div. Of Motor Vehicles v. Louis Caruso, App. Div. (12 pp.) Although the DMV may have unsuccessfully argued in an unrelated bankruptcy case that the surcharges on drivers with points and other violations did not constitute a debt, the trial judge did not abuse his discretion in failing to preclude the DMV from taking the contrary position in this case, since success in the prior proceeding is a prerequisite for the application of the doctrine of judicial estoppel. [Approved for publication Jun. 26, 1996.] BANKING — ENTIRE CONTROVERSY 06-2-9360 Anne M. Shannon, etc. v. Commerce Bank, N.A., etc. v. Patrick J. Shannon, etc., App. Div. (9 pp.) Plaintiff s claim against bank for allowing her ex-husband to draw checks on her account should have been raised in her matrimonial action and is barred by the entire controversy doctrine. CONTRACTS — COMMISSIONS 11-2-9361 ISU Inc., etc. v. Guglielmo D Urso, App. Div. (5 pp.) Since New Jersey follows the minority rule that a business broker whose real estate license has lapsed may recover a commission for that portion of the sales price of a business attributable to personal property even if the sale includes an interest in real property, the trial judge here did not abuse his discretion in awarding commission to plaintiff where real property sublease had no value and the parties did not intend any real-property interest to be part of the consideration. DEBTOR/CREDITOR — EVIDENCE 15-2-9362 Dorothy Bonanno v. Gen. Elec. Capital Corp., et al. v. Lori A. Hofstetter, et al., App. Div. (5 pp.) If all that was at stake was the question of plaintiff s rights versus mortgage company s rights regarding mortgage and foreclosure issues, the parties’ negotiations at settlement meeting would have been properly excluded from evidence under N.J.R.E. 408, but with viable claims that the same conduct was part of a broader effort, both fraudulent and tortious, on the part of the mortgage company, the judge erred in excluding the evidence. FAMILY LAW 20-2-9363 Robert J. Curtis Jr. v. Lydia Anne Chastain, etc., App. Div. (3 pp.) Since the judge, in making child support order, used incorrect information concerning the number of children from a previous marriage in plaintiff s care, and failed to follow the child support guidelines, order is reversed and matter remanded. 20-2-9364 Rita Nelson v. Paul Nelson, App. Div. (9 pp.) In light of the length of the marriage, during which plaintiff contributed substantially, not only in terms of working in defendant s medical practice, but also in the home, and in light of the fact that plaintiff has not worked outside of the home in a long time even though she holds a registered nurse s license, the judge s alimony award was too low and is modified. Additionally, the judge abused his discretion in not making a counsel fees award to plaintiff. 20-2-9365 Kathleen De La Ossa, etc. v. Alexandro De La Ossa, App. Div. (4 pp.) Father s contention that he is entitled to a credit under the child support guidelines for son s social security disability benefit is without merit, since the son is not receiving an apportionment of his father s social security entitlement, diminishing his father s income in any way, but is receiving a personal entitlement that arises from the father s disability. [Approved for publication Jun. 26, 1996.] LANDLORD/TENANT — MERGER OF TENANTS 27-2-9366 Krich Bros., etc., et al. v. Newark Buick, Ltd., etc., et al., App. Div. (8 pp.) Trial judge correctly held an automobile dealership vicariously liable for the breach of a lease agreement by another dealership under the theory of de facto merger of the two dealerships. MUNICIPAL LAW — SEWERAGE AUTHORITIES 30-1-9367 Wanaque Borough Sewerage Auth. v. Twp. Of West Milford, et al., Supreme Ct. (20 pp.) Under a quasi-contract theory, the township defendant is liable for a proportionate share of the costs incurred by a study committee during the planning stages of a regional sewerage authority. PHYSICIAN/PATIENT 29-2-9368 Dorothy Van Nosdall, etc. v. Joseph Sargent, M.D., et al., App. Div. (13 pp.) In a case where doctor did not comply with accepted medical standards when he continued to prescribe large amounts of acetaminophen with codeine to decedent, despite decdent’s elevated liver enzyme levels: (1) Jury verdicts awarding plaintiff, as the executrix of the decdent’s estate, $1.5 million and, individually, $500,000, were not unreasonable or excessive, and the trial court properly denied the motions of the doctor and medical group for a new trial or remittitur. (2)While the doctor s conduct was negligent, it was not egregious or reckless, as the prescriptions were part of a pain management program that provided decedent with the greatest degree of comfort, and the court properly dismissed the plaintiff s punitive damages claim. 29-2-9369 Richard L. Robinson, et al. v. Martin Swiecicki Jr., M.D., et al., App. Div. (13 pp.) Although written jury interrogatories expressed an incorrect standard with respect to informed consent — discussing the information a reasonably prudent physician would have given to a patient under the circumstances instead of whether a doctor has provided a patient with all of the necessary information a prudent patient should know in making a determination as to a particular procedure — the charge as a whole properly focused the jury on the crucial question of the credibility of plaintiff and defendant. PRODUCT LIABILITY — OCCASIONAL SELLERS 32-2-9370 Armulfo Moreno, et al. v. S&S Corrugated Paper Mach. Co., Inc., et al., App. Div. (13 pp.) The trial court correctly held that strict product liability does not apply to a product’s occasional seller who is not engaged in the business of selling such a product, and granted summary judgment to those non- manufacturing defendants in the chain of title of the machine upon which plaintiffs were injured, but since there are fact questions regarding one defendant s possible breach of contractual duty to warn, summary judgment is reversed on that issue. PUBLIC EMPLOYEES 33-2-9371 Mattie M. Fair v. City of Newark, App. Div. (5 pp.) The record supports the Merit System Board s finding that city chose its recreation superintendent based upon her superior credentials and not because of any retaliatory conduct against petitioner. 33-2-9372 Thomas J. Cifelli v. Christine T. Whitman, etc., et al., App. Div. (6 pp.) The actions of the plaintiff and the actions of the Passaic Valley Sewerage Commission clearly establish that plaintiff did not intend to leave his post of PVSC commissioner when he retired from his municipal position, and the attorney general erred in concluding that plaintiff s office had been abandoned and was vacant. WILLS, ESTATES, AND TRUSTS — GIFTS 38-2-9373 Joseph V. Melillo, etc. v. United Jersey Bank, etc. v. Gloria Toohey Laciopa, App. Div. (8 pp.) The court correctly dismissed executor s suit against bank for wrongful payment of certain CDs and a T-bill to decedent s widow — which were supposedly left to the New Jersey Foundation for the Blind in decedent s will — since the evidence shows that decedent had the requisite donative intent to give the assets to his girlfriend, who he later married, and that, to the extent possible, fulfilled the requirements for valid inter vivos gifts. WORKERS COMPENSATION 39-2-9374 Anthony A. Twardzik v. Ogden Aviation Servs., App. Div. (11 pp.) The record supports judge s finding that petitioner s notification to his employer regarding his injury was sufficient to meet the requirement of N.J.S.A. 34:15-17, where petitioner orally notified two supervisors about his injury, wore a bandage on his wrist for more than a month and then later wore a splint, and this conduct should have caused a reasonably conscientious employer to suspect a compensable claim. CRIMINAL LAW AND PROCEDURE — WAIVER OF RIGHT TO COUNSEL 14-2-9375 State v. Leroy Wiggins, App. Div. (14 pp.) The trial court erred by compelling defendant to represent himself in his motion for a new trial, and the court holds that a trial judge must engage in a searching inquiry with the defendant to determine whether his waiver of counsel is being made knowingly and voluntarily, informing the defendant of the technical problems he may encounter and of the risks he takes if his motion is unsuccessful. [Approved for publication Jun. 26, 1996.] A Daily Reporter of New Jersey Court Decisions

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